by Paul S. Gillies, Esq. RUMINATIONS


The Great Falls: A Survey of the Regulation of the Profession of Law 1778-2013


In Adam’s Fall, We Sinned All. Isaac Watts, The New England Primer (1777)1


Aristotle, in his Poetics, measured trag- edy by the depth of the fall. The fall of an utter villain is “neither pitiful nor terrible.” The tragic figure is one who is “highly re- nowned and prosperous,” brought down by “some great error or frailty.”2 The profession of law elevates those


who are licensed, giving them special pow- ers, beyond those inherent in the gener- al population. Once elevated, the licens- ees become responsible for their acts. Jus- tice Allen Sturtevant explained why the law should punish those who act as lawyers without credentials, and why we license lawyers: “The office of an attorney is an im- portant one. He represents the interests and stands in the place of his clients. Great matters are entrusted to his care, and it is necessary that sufficient regulations be had with reference to them. An unqualified per- son in his practice is not under oath, nor has he ever satisfied the court of his quali- fications and ability to practice. He is not learned in the law. He is not under the su- pervision or control of the courts, nor can he be reprimanded or disbarred for any unprofessional conduct. The public has a right to be protected against the unauthor- ized practice of the law by unqualified per- sons.”3


Lawyers are licensed so they can be


regulated, and disbarred, if necessary. We regulate for various purposes—to punish the respondent, to provide notice to others of what wrongs are actionable, to protect the public, and to protect the rep- utation of the profession. Bad lawyers are bad business for everyone, and from the beginning, the reputation of lawyers has al- ways been bad. “No one born in Ripton,” wrote Samuel Damon, its historian, “has had the misfortune to be a doctor, lawyer, judge, or member of any of the learned professions.”4


Ira K. Batchelder was the


only lawyer in Peru for many years, some- thing which Nancy M. Haynes explained “is at once a credit to the town as well as to him.”5


“Lawyers have never thrived in this


locality,” wrote Gay H. Naramore, historian of Underhill. “Cheese making or horse rais- ing is usually esteemed more honorable as well as lucrative.”6 By 1869, there had been about twenty- five lawyers who had practiced in Lyndon.


8


George Cahoon, an early historian of the town, wrote, “It is lucky that they were not all here together, for it would have been dry pickings, and some might have ob- tained a bad name; but spreading them over a space of nearly 60 years, they all had had opportunities to make themselves useful. Some look upon a lawyer as a sort of harbinger of evil, but this is illiberal, his duty is to suppress evil; and if governed by principle, he will endeavor to do it.”7


Be-


fore Orion W. Butler came to Stowe in 1826 to practice law, there was a strong local prejudice against lawyers, who were con- sidered, if not an absolute nuisance, “cer- tainly no better than a necessary evil.”8


The


first two lawyers in Benson stayed only a few months, were “held in poor repute” and “went elsewhere,


or absconded.”9


When Concord attorney David Hibbard, Jr., died, they said the community had lost an “honest lawyer,” as if that were an anom- aly.10


Lawyers are not all alike, even as they


are held to the same high standards. Their relative strengths and weaknesses reflect those in the general population. Augus- tus Young, Stowe’s first lawyer, lacked the tact and “shrewd knowledge of human na- ture, so necessary to successful practice as a lawyer. The world seemed to be a little too fast for him, and he was often behind time in fulfilling his purposes.”11


How famil-


iar that sounds. We wrestle with priorities, deadlines, and demands, leaving no time for deliberation. We take shortcuts. We for- get things. We make mistakes. “No rogue e’er felt the halter drawn. With good opinion of the law.”12


When


people lose lawsuits, go to jail, fail to achieve their expectations in court, lawyers are among the first to be blamed. Some clients will complain. Some will file pro- fessional conduct complaints. Some com- plaints will sting, and some will be fatal (at least, to a career). A very small percentage of attorneys fall so far that their licenses are affected. In our history, at least forty lawyers have been disbarred, sixty-nine have been suspend- ed, seventy-two have received public rep- rimands, and 141 have received private ad- monishments. Eight have been reinstated,


THE VERMONT BAR JOURNAL • SUMMER 2013


after disbarment.13 It is an incomplete re- cord, however. There are voids in the re- porting. Relying on what can be found in published reports of actions of the various systems of lawyer discipline over the histo- ry of Vermont, this survey attempts to sum up what lawyers have done wrong and how they have been sanctioned for those acts or failures to act, and to reflect on why it happens.14


Lawyers have been sanctioned for their behaviors from the beginning, but not al- ways by the Court.15


Charles Phelps moved


to Marlboro in 1764 and opened a law of- fice. He was the third settler of that place. As a Tory, his property was seized by the Court of Confiscation in 1784, including his law library, which became the founda- tion of the first Vermont State Law Library.16 There was an attorney in Concord named Richardson, who, “becoming obnoxious to the people, was rode out of town upon a blacksmith’s bellows.”17 Professional regulation is distinct from the criminal law.18


Some lawyers have been


convicted of crime, but the most a lawyer can suffer from the disciplinary process is the loss of a license. You are demoted, re- turned to non-privileged status, defrocked, stricken from the rolls. A license is not a right, and not every due process advan- tage is given to lawyer-respondents.19


Con-


victions of a civil and criminal nature can have an effect on the Court’s decision to disbar an attorney. Through the power of contempt, or some power akin to it, law- yers are regularly sanctioned in situ, by trial judges.20


And there is always a legal mal- practice claim, waiting in the wings.21


But


in the regulation of lawyers, the standards are different. Those standards changed over time. Be-


fore the adoption of the Code of Profes- sional Responsibility in 1971 and the Rules of Professional Conduct in 1999, the Su- preme Court had no adopted, formal set of standards by which to measure the conduct of lawyers, except by reference to the Ver- mont Bar Association Code of Ethics and later the ABA Canons. Earlier still, there was only discretion to guide the Court, ap- plying the oath that attorneys took upon admission as the guide. A chart of sanc-


www.vtbar.org


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